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The Week in COVID – Update for April 22, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

COVID BY THE (DIMINISHING) NUMBERS

The number of BOP staff with COVID fell dramatically last week from 1,254 to 252, but the spike now sweeping the country showed up among BOP prisoners, with the numbers increasing from 208 a week ago Monday to 408 two days ago,  only to drop back to 336 as of today. The BOP says that COVID is still present in 82 facilities, but that is down from 115 a week before.

COVIDvaccine201221BOP Director Michael Carvajal told the Senate Judiciary Committee that all BOP staff had been offered the vaccine, and 51% had taken it. He said 66% of inmates offered the vaccine had taken it. The BOP reported 40,808 inmates have been vaccinated as of last Friday (26.8%), up from 23.04% a week ago, The number suggests that the vaccine has been offered to about 61,800 inmates so far. Carvajal said all inmates would be offered the vaccine by the end of May.

The “pause” in administering the Johnson & Johnson vaccine last week because of two reports of a rare blood disorder is expected to be lifted in the next few days. While Dr. Anthony Fauci has said that the pause should be viewed as a “testimony to how seriously we take safety,” some experts are worried that the pause could lead to increased vaccine hesitancy, particularly in vulnerable populations that might be less likely to trust medical institutions in the first place, such as prisons.

“Vaccine confidence tends to be lower amongst people who have been disenfranchised,” Dr. Wafaa El-Sadr, a Columbia University professor of epidemiology and medicine told ABC News. “Among incarcerated people, that hesitancy may be tied to a historical legacy of doctors experimenting on people in prison.”

fearofvaccination210422At last week’s BOP oversight hearing, Judiciary Committee members expressed concern about the low vaccine acceptance rate among BOP staff. Sen Amy Klobuchar (D-Minnesota) noted that “95% of Mayo clinic doctors have been vaccinated because they don’t want to give it to their patients.” She wondered why BOP staffers were not similarly motivated to protect inmates by getting vaccinated.

ABC News, Prisons postpone vaccinations with Johnson & Johnson shots paused (April 16, 2021)

– Thomas L. Root

‘Helpful’ Judge No Help on 404 Motion, 11th Circuit Says – Update for April 21, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LET ME HELP YOU OUT A LITTLE…

Actions have consequences, even when the action is just sending your judge a from-the-heart letter asking for a break.

lifeline210421Oniel Russell found that out. Back in 2006, he was convicted of a crack offense and sentenced to 262 months. But after the First Step Act passed, Oniel heard that maybe he was entitled to a sentence break. He didn’t really understand the effect of a newly-retroactive Fair Sentencing Act, so he wrote to his sentencing judge to ask that a lawyer be appointed to assist him.

Nothing in Oniel’s short letter discussed the merits of whether he was eligible for, or should be awarded, a sentence reduction. But the district court couldn’t see the need for Oniel to waste a second stamp on an actual motion. Instead, the court helpfully construed Oniel’s letter to be a First Step Section 404 sentence reduction motion, and directed the government to respond.

nothingcoming210420The government opposed reduction because the maximum penalty for his offense stayed the same under the Fair Sentencing Act. In a two-paragraph order, the district court agreed, and held that Oniel was ineligible for the sentence reduction he had never asked for. Even if he were, the district court said, it did “not believe that Congress intended to give Defendant and others similarly situated to get the benefit of a sentence reduction.”

Last week, the 11th Circuit reversed.

In the wake of the Circuit’s Jones decision last June, it was clear that Onielwas eligible for a Section 404 reduction. Although the district court had said it would not grant a reduction even if it could, the Circuit found

not enough here to permit meaningful appellate review of the district court’s initial order… We cannot discern from the record the basis for the district court’s decision not to exercise its discretion. When the district court issued this order, the court had before it nothing from the parties addressing whether the court should exercise its discretion. Russell had merely sent the court a one-page letter requesting appointed counsel to assist him in seeking a sentence reduction under the First Step Act when the court sua sponte converted his request into a motion for a sentence reduction. The government submitted a response to the construed motion opposing any sentence reduction, but it addressed only Russell’s eligibility for relief under the First Step Act, not whether, if Russell were eligible, the court should exercise its discretion… We cannot affirm based on the order because neither the order itself nor the record sheds any light on the district court’s reasons for declining to exercise its discretion.

United States v. Russell, Case No. 19-12717, 2021 US App LEXIS 10743, (11th Cir., April 15, 2021)

– Thomas L. Root

Odd Couple Beat Up on Prison Head – Update for April 20, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction  matters, legislative initiatives, and sentencing issues.

SENATORS UNHAPPY OVER FIRST STEP IMPLEMENTATIONS

oddcouple210219Last Thursday’s Senate Judiciary Committee Oversight hearing opened with Committee chair Richard Durbin (D-Illinois) and Ranking Member Charles Grassley (R-Iowa) both blasting the BOP not just for its failures in placing inmates in home confinement, but for the PATTERN recidivism tool – which Durbin called “deeply flawed” – and for what they see as BOP slow-walking implementation of First Step Act programming.

Durbin complained that PATTERN contained “stunning racial disparity in inmate classification, and that the BOP’s proposed rule for awarding earned time credit – which requires 240 actual hours of programs for one month’s credit – “severely limits the ability to earn these credits, and that undermines participation.”

“Our prison system at the federal level is failing,” Durbin said in his opening remarks, “failing to fulfill its fundamental purpose, the rehabilitation of incarcerated individuals.”

Grassley said he was “disheartened with the lackluster implementation of the First Step Act. “The DOJ and Bureau of Prisons are implementing the First Step Act as if they want it to fail. I hope this is not true but actions speak louder than words.”

BOP Director Michael Carvajal said that COVID had hampered full rollout of the programming inmates could complete for earned credits that reduced their sentences, but Grassley responded, “I don’t think that national eFSAsabotage210420mergency can be used as a scapegoat… It seems like the Justice Department and the Bureau of Prisons have failed in this effort… Even if it isn’t so, at some point it becomes a perception, and perceptions become a reality.”

Carvajal told the Committee that about 50% of the 125,000 inmates reviewed were eligible to take programming for earned time credits. He told the Committee that last year, “even through COVID, we had over 25,000 inmates complete a program for time credit.”

This was a surprising admission, in my view. In litigation, the BOP has argued that its obligation to implement the evidence-based reduction programs and award Earned Time credits will not take effect until January 2022. That position – already rejected by several courts – seems to be undercut by Carvajal’s statement to lawmakers that 25,000 inmates got some ETC credit during 2020.

Senate Judiciary Committee, Oversight of the Bureau of Prisons (April 15, 2021)

Goodman v. Ortiz, Case No 20-7582, 2020 US Dist LEXIS 153874 (DNJ Aug 25, 2020)

– Thomas L. Root

DOJ Eases CARES Act Home Confinement Eligibility – Update for April 19, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DOJ RELAXES PATTERN SCORE LIMITATION FOR CARES ACT HOME CONFINEMENT

Bureau of Prisons Director Michael Carvajal last Thursday told the Senate Judiciary Committee that the Dept of Justice has modified the CARES Act home confinement criteria to qualify people whose PATTERN recidivism scores are “low” for home confinement.

release160523A memorandum apparently has been issued, because in a FAMM press release issued on Friday, FAMM president Kevin Ring said “We’re grateful that the new administration heeded the widespread calls to make more people eligible for home confinement. The original criteria were too narrow.”

Although I tried Friday and over the weekend to obtain a copy of the memo, I was not able to. The Ring statement suggests that more than one standard may have changed, but nothing else has been confirmed. I have heard a rumor as to what that change might have been, but I try not to deal in rumors, so I am awaiting confirmation.

The DOJ decision to expand CARES Act home confinement at this time suggests that the Administration does not intend to stop COVID home confinement placement anytime soon, despite the fact that all inmates will have access to vaccine within the next month. Carvajal told the Committee, “We are working to get as many people as are appropriate out within the criteria we are given.”

Sen Charles Grassley (R-Iowa) complained to Carvajal that the BOP’s use of “home confinement fails to comply with the First Step Act.”

mismanagement210419Committee Chair Richard Durbin (D-Illinois) was even blunter, asking Carvajal whether he had been directed to make eligibility for CARES Act home confinement as restrictive as possible. He said of the 230 BOP inmate COVID deaths, “These were preventable deaths. It is clear that the Bureau has been far too rigid in approving transfers to home confinement and to approve compassionate release. This is part of a broader issue of mismanagement.”

Carvajal told the Committee that the BOP, which has about 4,500 prisoners on home confinement under the CARES Act, has always followed DOJ guidance. No one asked him about the BOP’s own gloss on those criteria, which was the April 22, 2020, BOP memo requiring 50% of the sentence to be served (a standard from which the BOP said it could deviate “in its discretion,” if, for example, your name is Paul Manafort or Chaka Fattah).

Carvajal said the home confinement program has been a success. Right now, over 4,500 inmates are at home under the CARES Act, while only 151 have been returned to prison, 26 of which for escape from monitoring, and only three for new crimes (only one of which was violent).

return161227Many Committee members expressed dismay at the January 15 DOJ Office of Legal Counsel opinion that CARES Act confinees have to return to prison when the pandemic ends. Carvajal said about 2,400 of the CARES Act confinees have more than a year left on their sentences, and about 310 of those have more than five years to do. He said the BOP just wants guidance: “I ask that the statute be changed, or that we work with the DOJ… I don’t want somebody to believe that the Bureau of Prisons somehow doesn’t want to let someone out.”

But if the confinees are sent back, Carvajal said the BOP is prepared to handle the influx. Not everyone agrees. “We don’t have the staff,” Council of Prison Locals Southeast Regional Vice President Joe Rojas told Reuters. “We are already in chaos as it is, as an agency.”

Durbin and Grassley said they would ask the new Attorney General to withdraw the January OLJ memorandum, or – if that failed – they would seek to change the statute.

Courthouse News Service, Federal Prisons Flunked the Pandemic, Senators Say (April 15, 2021)

Reuters, U.S. has no plans to order inmates released in pandemic back to prison-official (April 15, 2021)

Reason, Pressure Grows on Biden To Rescind Memo That Would Send Thousands Released on Home Confinement Back to Federal Prison (April 16, 2021)

FAMM, FAMM releases statement on Department of Justice expanding home confinement (April 16, 2021)

Senate Judiciary Committee, Oversight of the Bureau of Prisons (April 15, 2021)

– Thomas L. Root

Judiciary Committee Exercised Over Home Confinees Returning to Prison – Update for April 16, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LOBBYING EFFORT ON CARES ACT HOME CONFINEMENT MAY BE BEARING FRUIT

FAMM started to turn up the heat last week on an effort to get President Joe Biden and Attorney General Merrick Garland to rescind the January 15 memo from DOJ’s Office of Legal Counsel that would lead to the return of people now on home confinement under CARES Act placement to federal prison when the pandemic ends.

The memo was a prime topic yesterday when Bureau of Prisons Director Michael Carvajal testified before the Senate Judiciary Committee. Judging from the questions coming from both Republicans and Democrats on the Senate Judiciary Committee (with the exception of the execrable Sen. Tom Cotton [R-Klingon Empire] and Sen. Josh Hawley [R-Mongol Horde]), the FAMM campaign is bearing fruit.

hawley2100416

The OLC memo, issued in the final days of the Trump administration, would force the BOP to send several thousand people currently on home confinement. Carvajal said it would probably affect somewhere around 2,500 people now on home confinement with a year or more to go on their sentences. A few more than 300 have lengthy sentences left. Of the group, he said 21 have been returned to BOP custody, but only two of those were because of new criminal conduct.

The memo is incorrect as a matter of law and would impose devastating human costs, as well as a negative impact on public safety. Sen. Richard Durbin (D-Illinois), chair of the Committee, said yesterday he was writing to Garland to urge him to reconsider his predecessor’s opinion.

FAMM and 28 other advocacy groups sent a letter to Biden and Garland on April 1st. FAMM has launched the “Keep Them Home” campaign, and is both collecting signatures on a petition and calling on people to call Garland’s office in order to get the Administration to rescind the memo.

home190109FAMM president Kevin Ring told The Appeal that those who were released did not expect to have to return to prison. “These folks came home and were told, ‘You’re not going to have to come back,’” Ring said. “They reunited with their families. Some of them have kids who they said, ‘I’m home.’ They said, ‘Do you have to go back, Dad?’ ‘No.’ So this changes everything.”

Earlier, the BOP declined to answer reporters’ questions about the memo, but Joe Rojas, Southeast Regional Vice President of the union representing BOP employees, said sending everyone back to prison would be logistically impossible. “We have no staff,” he told The Sentinel, “We are already in chaos as it is.”

But yesterday, Carvajal said that the BOP has ample space to absorb the home confinees if they were to return. Nevertheless, he expressed no opinion on whether they should come back. The Director noted that the issue is not immediate, because the pandemic emergency has been extended by the President.

home210218My take on Carvajal’s position (for what it’s worth) is that his bias leans toward leaving people who have complied with their home confinement terms at home. He said repeatedly that the BOP’s mission was to successfully return people to the committee, and as long as home confinees are successful at home, there was nothing wrong with leaving them there.

However, Carvajal said that the BOP’s primary interest was to follow the law, and he urged lawmakers to amend the home confinement statute to make clear what should be done.

The Appeal, Unless The Biden Administration Acts, Thousands Could Go Back To Federal Prison (April 5, 2021)

FAMM Petition

KSU The Sentinel, Inmates under house arrest in the event of a pandemic could return to prisons in the United States (April 11, 2021)

Senate Judiciary Committee, Oversight Hearing on Bureau of Prisons (April 15, 2021)

– Thomas L. Root

Who Ya Gonna Believe, Science or the US Attorney? – Update for April 15, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

COVID IS LOVELIER, THE SECOND TIME AROUND…

ipsedix210415The value of government blandishments has dropped substantially over the past few days, as prior assurances about the safety of the Johnson & Johnson vaccine morphed into a “pause” because some recipients were in the ICU with clotting blood. As one inmate, who watched a third of his unit get the J&J shot the day before the “pause,” told me, “I think this is the nail in the coffin for J&J, not many inmates will take it anymore here from the sound of it.”

I’m not judging J&J, which may or may not have triggered a severe reaction in two out of a million users. But the government’s willingness to speak with authority when it has no basis for the assertion is not an uncommon phenomenon. Take the U.S. Attorney in any of the 94-odd federal districts making up this great nation.

More than one federal prisoner who has already had COVID (and there are a lot of them) has moved for 18 USC § 3582(c)(1)(A)(i) compassionate release. In many cases, prisoners have filed for compassionate release and then gotten COVID while waiting for the judge to act.  For inmates whose compassionate release motions were not decided at the time they got sick, the government likes to argue that they are immune, or at least that if they get it again, their case would be no worse than the first time around.

ipsed210415Last week, a district court rejected the government’s evidence-free ipse dixit (a gift to posterity from Marcus Tullius Cicero which means, essentially, that “it’s so because I said it’s so”), and accepted an inmate’s expert opinion to the contrary.

Justin Groat filed for compassionate release. He had already had COVID-19, but he had a laundry list of comorbidities that could have made things worse, and would not help matters if he caught it again. The government argued he was immune, and he would be fine (without, of course, citing any basis for its claim, a classic ipse dixit.

But Justin responded that a number of district court decisions had held  a previous positive Covid-19 diagnosis does not block grant of a compassionate release motion  “if compelling and extraordinary reasons justify a reduced sentence.” He also a medical school professor’s opinion that “immunity seems to last approximately 90 days and that ‘reinfection with Covid-19 has been documented, with some individuals presenting with more severe disease than the first infection.”

AUSAignorance210415

The district court granted compassionate release, finding Justin’s evidence “persuasive” that COVID immunity only lasted about 90 days. “The Government has only offered the opinion of its counsel that Mr. Groat’s prior infection suggested he was safe as “amount[ing] to nothing more than impermissible ipse dixit… Because Mr. Groat is currently unvaccinated, exposed to many other inmates who are similarly unvaccinated, being guarded by substantial percentage of staff who (according to defense counsel) have also not been vaccinated, and because it is likely that he is capable of being reinfected, the court finds that Mr. Groat is at risk of being infected with Covid-19.”

Incidentally, over half of the BOP’s workforce has refused vaccination.

United States v. Groat, Case No 2:17cr104, 2021 U.S. Dist. LEXIS 65194 (D.Utah Apr 2, 2021)

– Thomas L. Root

Groundswell for Judicial Discretion in Compassionate Release Cases – Update for April 13, 2021

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TWO MORE CIRCUITS REJECT GUIDELINES § 1B1.13 AS GOVERNING COMPASSIONATE RELEASE

stampede210413Since United States v. Brooker last fall, four other circuits had held that USSG § 1B1.13, the Guidelines policy statement that severely restricts qualification for 18 USC § 3582(c)(1)(A)(i) compassionate release, did not apply to motions brought by inmates.

Last week, the 5th and 9th Circuits joined the stampede, bringing the total to seven.

The Guideline, among other terms, requires movants to show that they will not be a danger to the community or others (applying the standards of 18 USC § 3142(g), the statute governing pretrial release), and limits compassionate release for inmate medical conditions, sick partners, unparented kids. Other reasons may be used as well, but only those approved by the BOP.

It is hard to overstate the importance of the tsunami of holdings invalidating the use of §1B1.13 in compassionate release cases. District courts have cited § 1B1.13 in over 7,200 decisions in the last year. The government continues to argue in pleading that courts should reject compassionate release motions as inconsistent with  § 1B1.13, even where the circuit has held otherwise. Just last week, I read a compassionate release response in which the government reluctantly acknowledged – almost as an afterthought – that the Circuit had held that nothing “in the now-outdated version of Guideline § 1B1.13 limits the court’s discretion,” but only after a full page of arguing the court should apply it anyway.

Francesk Shkambi’s compassionate release was thrown out by a district court for lack of jurisdiction, because Frank didn’t fit into any of the four grounds listed in § 1B1.13. But last week, the 5th Circuit reversed, finding § 1B1.13 inapplicable:

§ 1B1.13 says it only applies to ‘motion[s] of the Director of the Bureau of Prisons’. That makes sense because in 2006 (when the Sentencing Commission issued the policy statement) and in November of 2018 (when the Commission last amended it), the BOP had exclusive authority to move for a sentence reduction. When Congress enacted the First Step Act in December of 2018, it gave prisoners authority to file their own motions for compassionate release; but it did not strip the BOP of authority to continue filing such motions on behalf of its inmates. So the policy statement continues to govern where it says it governs — on the ‘motion of the Director of the Bureau of Prisons.’ But it does not govern here — on the newly authorized motion of a prisoner… Just as the district court cannot rely on a money-laundering guideline in a murder case, it cannot rely on the BOP-specific policy statement when considering a non-BOP § 3582 motion.

compassion160208Meanwhile, in California, a district court denied Pat Aruda’s compassionate release motion because it was inconsistent with § 1B1.13. Last week, the 9th Circuit reversed.

We agree with the persuasive decisions of our sister circuits and also hold that the current version of USSG § 1B1.13 is not an ‘applicable policy statement’ for 18 USC § 3582(c)(1)(A) motions filed by a defendant,” the Circuit wrote. “In other words, the Sentencing Commission has not yet issued a policy statement “applicable” to § 3582(c)(1)(A) motions filed by a defendant. The Sentencing Commission’s statements in USSG § 1B1.13 may inform a district court’s discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are not binding.

So far, the 2nd, 4th, 5th, 6th, 7th, 9th and 10th have ruled that § 1B1.13 does not control inmate-filed compassionate release motions. No circuit has held otherwise.

United States v. Shkambi, Case No 20-40543, 2021 US App. LEXIS 10053 (5th Cir. Apr 7, 2021)

United States v. Aruda, Case No 20-10245, 2021 US App. LEXIS 10119 (9th Cir. Apr 8, 2021)

– Thomas L. Root

Thursday is Hamburger Day – Update for April 12, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BOP DIRECTOR TO BE GRILLED ABOUT COVID, FIRST STEP

hamburger160826Almost every inmate in the Bureau of Prisons system looks forward to Wednesdays, when the nationwide lunch menu serves sandwiches that pass for hamburgers, with a side of fries. But this week, BOP Director Michael Carvajal’s hamburger day may come one day later.

Carvajal will testify this Thursday before the full Senate Judiciary Committee in the first comprehensive BOP oversight hearing since 2019. Politico said last week that principal issues will include how BOP has handled the coronavirus pandemic and how it has implemented the First Step Act. “On both counts,” Politico reported, “the Bureau has drawn bipartisan criticism.”

A BOP statement last week said Director Carvajal “is looking forward to the opportunity to provide the Senate Judiciary Committee with information at the upcoming Oversight of the Federal Bureau of Prisons hearing on the morning of April 15, 2021.” Yeah, I have no doubt of that… like a dental patient eagerly anticipates a root canal without Novocain.

oddcouple210219At the hearing, Carvajal will face Sen. Richard Durbin (D-Illinois) — now the committee chair — former chairman Charles Grassley (R-Iowa), Patrick Leahy (D-Vermont), John Cornyn (R-Texas), Cory Booker (D-New Jersey and Mike Lee (R-Utah), among others. Durbin, Grassley, Leahy, and Lee have been vigorous in their demands that the BOP should do more to move the most vulnerable inmates out of prison because of COVID-19. And Booker is a co-sponsor of the Federal Correctional Facilities COVID-19 Response Act, introduced two months ago to address inadequacies in the BOP’s management of the pandemic. “The Department of Justice’ response to the COVID-19 pandemic has been unacceptable and has placed nearly 2.3 million incarcerated people in danger,” Booker said at the time.

What will the Committee ask Carvajal? Well, it could start with the Director’s past statements about the BOP’s “transparency” on COVID. Carvajal told a House subcommittee in December that “the Bureau has published one of the most detailed and thorough COVID pandemic resource areas in the federal government on our public website at www.bop.gov/coronavirus.”

timebackward210412Is that a fact, Mr. Director? Sure, since April 2020, the BOP has provided a running total of the number of inmates who tested positive for COVID. But two months ago, the total mysteriously started going down. I initially thought that Steven Hawking had been right that the universe may someday contract: maybe it has begun, and time is moving backward. But that was not the case. Instead, the BOP had adopted the view is that if an inmate contracted COVID but thereafter was released, it should be treated as though he or she had never been there. Because the inmate had never been there, then his or her COVID case could not count against the BOP’s total.

Accounting brilliance, Mr. Director! But don’t be surprised if some on the Committee might be so forward-thinking, number-wise, and wonder whether – with enough time – the Bureau’s total number of historic COVID cases might regress to zero.

What’s more, the Bureau’s loose use of the definition of “recovered” might raise Committee doubts. Last week, the BOP announced that two more “recovered” inmates, both at the Springfield, Missouri, Medical Center for Federal Inmates, had died. One, Leonard Williams, contracted COVID in late February, but “on Monday, March 22, 2021,” the BOP said, “in accordance with Centers for Disease Control and Prevention (CDC) guidelines, Mr. Williams was converted to a status of recovered following the completion of medical isolation and presenting with no symptoms. On Saturday, April 3, 2021, Mr. Williams became unresponsive.” He was pretty unresponsive, all right. The EMT crew pronounced him dead before he got to the hospital.

Another inmate, Jaime Benavides, caught COVID in December but was declared “recovered” 10 days later. But “on Thursday, March 25, 2021, Mr. Benavides’ condition worsened and he was transported to a local hospital for further treatment and evaluation.” Committee members may how a “recovered” person’s condition can worsen. After all, he had “recovered!” Mr. Benavides died of his recovery on April 4.

numbers180327The Marshall Project has been reporting a tally of COVID in federal and state prisons every Friday for over a year. Last Friday, it informed readers that its

data no longer includes new cases from the Federal Bureau of Prisons, which has had more prisoners infected than any other system. In early March, the bureau’s totals began to drop because they removed cases of anyone who was released, a spokesman said. Similarly, in early April, the Bureau of Prisons lowered the number of deaths it was reporting among people held in private prisons. As a result, we cannot accurately determine new infections or deaths in federal prisons.

The New York Times noted last week in a report on COVID in prisons that its data were not complete because “the federal prison system and ICE did not regularly provide facility-level data for inmate infections or disclose the number of tests conducted on inmates or correctional staff members.”

Maybe the Committee will ask Carvajal about the BOP’s abysmal staff vaccination rate. Last week, the Federal News Network reported on a number of government agencies whose frontline workers were having trouble accessing vaccines. But, FNN said, “the Bureau of Prisons in the Justice Department is having the opposite problem. BOP says it offered the COVID-19 vaccine to all of its employees, but only 49% took the agency up on its offer. BOP says it can’t require employees to take the vaccine since the Food and Drug Administration hasn’t formally approved them yet.”

As of last Friday, the BOP reported only a very questionable 208 inmate COVID cases, but 1,250 sick staff, a number unchanged in the last two weeks. Committee members might justifiably wonder why the inmate number – which the BOP controls – has dropped so dramatically, while the staff number – which the BOP cannot control – remains so high.

Perhaps the Committee will want to know why the BOP touts that it had put 125,000 shots into arms as of last Friday, yet it reports only 23% of the inmate population has been vaccinated.

plagueB200406But it may just be that the Committee will be interested in some stats The New York Times ran in last week’s COVID in prisons story: Worldwide, two people out of 100 caught COVID. In the US, nine people out of 100 caught COVID. In the BOP, 39 out of 100 prisoners, although the “true count is most likely higher because of a dearth of testing.”

There’s more than Monday-morning quarterbacking to this hearing. The pandemic is not quite done. Researchers are warning that if the B.1.1.7 variant, which is more contagious, becomes more dominant, the nation could experience another peak in cases this summer that may be worse than the January peak.

It is likely that Thursday will be hamburger day for the Director. After all, Politico says he will be “grilled.”

Senate Judiciary Committee Calendar, Oversight of the Federal Bureau of Prisons

Politico, Prison chief to face congressional grilling (April 9, 2021)

S.328, Federal Correctional Facilities COVID–19 Response Act

DOJ, Statement of Michael D. Carvajal, Director Federal Bureau of Prisons (December 2, 2020)

BOP Press Release, Inmate Death at MCFP Springfield (April 7, 2021)

BOP Press Release No. 2, Inmate Death at MCFP Springfield (April 7, 2021)

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (April 9, 2021)

FNN, Frontline feds facing inconsistent access to COVID vaccines (April 6, 2021)

The New York Times, Incarcerated and Infected: How the Virus Tore Through the US Prison System (April 10, 2021)

Insidenova, Spread of new COVID-19 variant may cause another peak in cases this summer, UVa researchers say (April 4, 2021)

– Thomas L. Root

Can You Hear Me (and My Lawyer) Now? – Update for April 9, 2021

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NPR REPORTS ON PUSH FOR ATTORNEY-CLIENT PRIVILEGE IN BOP EMAIL

NPR reported last week on congressional efforts to protect inmate email to lawyers from BOP snooping.

mail210409

In February, the House of Representatives approved the Effective Assistance of Counsel in the Digital Era Act by a vote of 414 to 11. The bill, now referred to the Senate Committee on Crime, Terrorism, and Homeland Security, would require the BOP to refrain from monitoring the contents of emails between inmates and their lawyers without a warrant.

The bill’s sponsor, Rep. Hakeem Jeffries (D-New York), said the vote garnered a large bipartisan majority at a time when lawmakers don’t agree on much.

wiretap210409The Congressional Budget Office predicted that if the legislation passed the Senate, the Federal Bureau of Prisons would have to build a new email system and create a registry of approved lawyers — measures it expects could cost $52 million through 2025.

A BOP spokesman told NPR that inmates and their contacts who use the email system “voluntarily consent to having all system activity monitored and retained.” He said that prisoners and their lawyers can communicate through phone, letters, or visits, which he said are not monitored by staff.

NPR, When It Comes To Email, Some Prisoners Say Attorney-Client Privilege Has Been Erased (March 31, 2021)

H.R. 546, Effective Assistance of Counsel in the Digital Era Act

– Thomas L. Root

Patience, People, on Criminal Justice Reform – Update for April 8, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

WHEN WILL BIDEN TACKLE CRIMINAL JUSTICE REFORM?

The most common question I have gotten from inmates since January is when Congress will pass criminal justice reform. It brings to mind the old variation on the serenity prayer: “Lord, grant me patience… and I want it NOW.”

Reform200819But patience is what everyone needs. There’s the infrastructure, the racial reckoning, and now the gun control push (which will probably prevent a minuscule number of gun crimes, but looks all shiny and robust). I am convinced we will get to criminal justice reform, but it will take a bit.

Still, there are some encouraging signs. First, President Biden’s Dept of Justice followed up on its letter to the Supreme Court a few weeks ago with a brief filed last week in Terry v. United States, arguing that Section 404 of the First Step Act covers low-level crack cocaine offenders sentenced under 21 USC § 841(b)(1)(C), “a dramatic reversal that comes more than three decades after a Biden-crafted bill helped to fuel disproportionately harsh penalties for Black drug offenders,” according to The Hill.

But Biden promised more. During his campaign, he promised to address mandatory minimums. Nkechi Taifa, a Washington-based criminal justice reform advocate, believes that will change soon. Taifa said last week that he has been in touch with the Biden administration. “With respect to drugs,” he said, “it’s only about the weight of drugs and amount of drugs that dictates the time you serve. It doesn’t matter what the judge thinks, doesn’t matter what your characteristics are. Biden has said he’ll do away with it.”

return161227Cynthia Roseberry of the ACLU said on NPR last week that Biden could do a lot with a stroke of a pen, such as reverse the DOJ legal opinion in January that people on CARES Act home confinement had to return to prison when the pandemic ended. Last week, NPR reported, “prisoner rights groups asked Biden and Attorney General Merrick Garland to intervene, citing their comments about the need to reduce the prison population.”

And just today, FAMM – which has been active in urging the Dept. of Justice to reverse the legal opinion – is urging people to call the Attorney General to lobby him to take action.

Biden has proclaimed April a second chance month for people involved in the justice system. Roseberry told NPR she wants to see Biden use his sweeping power to grant clemency during the month.

The Hill, Biden urges leniency for harsh crack sentences fueled by his crime bill (March 31, 2021)

WTVR-TV, When will President Biden address criminal justice reform? (April 1, 2021)

NPR, Criminal Justice Reform Advocates Say They’re Anxious To See More Action From Biden (April 2, 2021)

– Thomas L. Root